Swayzee v. The City of Augusta

• Decision Date: 09 June 1923
• Docket Number: 24,530
• Citation: 216 P. 265,113 Kan. 658
• Parties: HOWARD SWAYZEE, surviving Husband and Next of Kin of ELLA SWAYZEE, deceased, Appellee, v. THE CITY OF AUGUSTA, Appellant
• Court: Kansas Supreme Court

216 P. 265

113 Kan. 658

HOWARD SWAYZEE, surviving Husband and Next of Kin of ELLA SWAYZEE, deceased, Appellee, v. THE CITY OF AUGUSTA, Appellant

No. 24,530

Supreme Court of Kansas

June 9, 1923

Decided January, 1923.

Appeal from Butler district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE -- Distribution of Natural Gas -- Defective Gas Pipes -- Gas Forced into Private Residence of One Not a Customer--Explosion--Death. A city, which was producing and distributing gas for its patrons within the city, received an application to supply gas for a certain residence and sent its representative to inspect the meter and the connections on the premises. There was a buried cut-off at the curb where gas passed from the main to the service pipe which was out of order and also a cut-off near the meter between the house of the applicant and that of the plaintiff, who had not applied for, and did not desire to use gas. Upon inspecting the meter and the connections the agent of the city discovered that the pipe leading to the applicant's house in front of the meter was connected with a pipe which led to plaintiff's house and found that it was open and when the gas was turned on for the house of the applicant it would pass unobstruced into the house of plaintiff. The applicant had not made connections with her stoves and the agent for the city informed her that the appliances were all right and that when the connections were made she might turn on the gas. Shortly afterwards the connections were made in the house of the applicant, and the plumber employed by her turned on the gas as the agent of the city had instructed. It passed into the house of plaintiff and later, when his wife came home and struck a match in order to light an oil lamp, an explosion occurred which killed her and caused other injuries. The gas was forced up to the exposed cut-off on the premises and was stored in the service pipe, and the permission given by the city to the applicant to turn on the gas was given without notice to plaintiff or his family, when its agent knew that the pipe leading to plaintiff's house was uncapped and out of order and would leak into the house of plaintiff. Held, that the city was guilty of negligence and is responsible for the damages resulting to plaintiff from the explosion.

2. SAME--Joint Tort--Joint Liability. Where two or more persons concurrently participate in a wrong, which operates in causing injury to another, all wrongdoers are jointly and severally liable.

3 SAME--Instructions. Instructions of the trial court examined and held to be without error.

4. SAME--Verdict Not Excessive. The amount awarded to plaintiff as damages is held not to be so excessive as to indicate passion or prejudice on the part of the jury.

N. A. Yeager, R. A. Cox, both of Augusta, T. A. Kramer, and George J. Benson, both of El Dorado, for the appellant.

Clarence R. Sowers, Chester I. Long, Joseph D. Houston, Austin M. Cowan, Claude I. Depew, James G. Norton, and W. E. Stanley, all of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action by Howard Swayzee to recover damages sustained by the death of his wife, caused by an explosion of natural gas which it was alleged occurred by reason of the negligence of the city of Augusta in the distribution of gas. The trial resulted in a verdict and judgment in favor of plaintiff, and the defendant appeals.

The city owned and operated a gas plant, with a distributing system consisting of mains, pipes, meters, cut-offs and other appliances, by which gas was supplied to consumers for domestic and other purposes. One of its mains was placed and passed down the street in front of plaintiff's residence and a service pipe led from this main to a point between plaintiff's residence and what is known as the Stott residence which was about twenty feet north of that of the plaintiff. A cut-off was located at the curbing where the gas passed from the main pipe into the service pipe. This cut-off was placed about eighteen inches underground and was enclosed in a box about four inches in diameter. It was manipulated by a key twenty to thirty inches long with a slot fixed in it which dropped down and opened and closed the stop-cock. The box, however, had been allowed to fill up with dirt to the top and the cut-off could not be reached. It was open, and the gas from the plant was forced into the service pipe leading to the meter between the Stotts and plaintiff's home. This meter had been placed between the two houses and was designed to measure gas used in both with one pipe leading north from the meter to the Stott house and another to the house of plaintiff. There was a stop-cock back of the meter which was on the service pipe and was accessible to anyone that might choose to use it. A cut-off was placed on the pipe leading from the meter to the Stott house but there was none between the meter and plaintiff's house. When gas passed through the meter into the Stott house it necessarily flowed into the plaintiff's house. Plaintiff had not been using gas and had made no application for it. The pipes and fixtures in his house were open and defective and when gas was turned on it leaked into the pipes and accumulated in the home of the plaintiff. This condition and danger was known to the city authorities. Application had been made for gas to be used in the Stott house, and Robinson, the agent of the city, who was employed to keep meters in order and turn on and off the gas according to the demands and needs of patrons, went to the place and tested the meter, and when it was regulated he found that gas passed through it. He learned that the pipes had not been connected with the stoves in the Stott home. He shut off the gas at the cut-off near the meter and informed Mrs. Stott that it was all right to turn on the gas when the connections were made in her house. At that time he understood that when gas was let into the meter for the Stott residence it would leak into plaintiff's house, and also knew of the defective condition of the pipes in plaintiff's house. He did not warn the plaintiff in any way of the turning on of the gas or of the danger incident to turning it on, and the reason he assigned was that he called there for that purpose but found no one at home. Mrs. Stott employed a plumber, who made the connections with her stove and turned on the gas at the cut-off near the meter, but he did not know of the condition of the pipes leading to plaintiff's house or as to the absence of a cut-off there. Shortly afterwards the wife of plaintiff returned to her home, and when she lighted a match preparatory to lighting her lamp, the accumulated gas exploded with great violence causing injuries from which she died within a few hours after the explosion. The service pipe leading from the main had been installed by the owner of the property, but the meter was owned by the city and the city reserved the right at all times to enter upon the premises of the consumer for purposes of inspection and examination of the meters, pipes, and attachments, and no person was allowed to connect any stove or other appliance without the permission of the city. It was made unlawful by a city ordinance for the owner or any person to turn gas on or through any stop-cock or cut-off, and that no gas fittings or attachments could be used without the permission of the city and approval of the superintendent of the gas plant.

Upon the recited facts and others brought out at the trial the jury found for the plaintiff, and in response to special questions found, first, that defendant was negligent in failing to shut off the gas at the curb line and, second, in failing to make a special effort to give notice or make repairs where the gas led into plaintiff's residence. The first contention of the defendant is that the negligence, found by the jury, was not pleaded in the petition as amended. In the pleading it was alleged, in substance, that the defendant failed to provide proper stop-cocks and allowed gas to pass into the pipes leading to plaintiff's house without sufficient cut-offs, and without his knowledge or the consent or knowledge of his wife, that it was negligent in providing a meter through which the Stott house and the Swayzee house were both to be supplied, and in allowing a construction that would permit gas to pass unobstructed into plaintiff's house when it was turned into the Stott house, that it was negligent in the provision for and maintenance of a defective system, leaving it in such a condition as to constitute a nuisance and an invitation to heedless persons as well as the occupier of the adjacent property to turn on the gas so that it would flow through the defective and dangerous pipes into plaintiff's residence, when the defendant knew or should have known of the dangerous consequences likely to follow its negligent conduct, and which defendant might have avoided by the use of proper care and foresight.

While the special findings are not couched in the language of the plaintiff's petition they are fairly embraced in the charges of negligence. Among the charges of negligence was the turning on of the gas or the giving of permission to another to turn it on without proper cut-offs and appliances which would prevent it from endangering the plaintiff's...